Attachment_0009_-_Use_and_Non-Disclosure_Agreement_SubContractors_-_CROWS.doc

Use and Non-Disclosure Agreement

(Prospective and Actual Sub-Contractors) The undersigned, ---------------- (Insert Name) ----------------, an authorized representative of the ---------------- (Insert Company Name) ----------------, (hereinafter the “Recipient”) is a prospective sub-contractor or actual sub-contractor to a prime/higher tier contractor, ----------------- (Insert Company Name of prime/higher tier contractor and Address) --------------, itself responding to the U.S. Government’s Solicitation No. W15QKN-17-R-0016 (Solicitation), issued by the Army Contracting Command (ACC) – New Jersey, on behalf of Project Manager Soldier Weapons.

Recipient requests from the above-named prime/higher tier contractor certain noncommercial technical data or computer software (hereinafter “Data”) in which the Government’s rights to use, modify, reproduce, release, perform, display or disclose such Data are restricted. The Data to which this Use and Non-Disclosure Agreement (hereinafter “Agreement”) applies is identified in an attachment to this Agreement and is marked with the “Special License Rights” legends prescribed by the contract clauses at 48 CFR (DFARS) 252.227-7013(f)(4) and DFARS 252.227-7014(f)(4). In consideration for disclosure of said Data, Recipient agrees to comply strictly and in good faith with all of the requirements and restrictions contained in this Agreement.

1. Recipient shall only use, modify, reproduce, release, perform, display, or further disclose the Data, as provided in this Agreement, for the following purposes: i) to determine whether to participate with a prime offeror/higher-tier contractor in responding to the Solicitation; ii) to prepare and submit its proposal to the prime offeror/higher-tier contractor in responding to the Solicitation; and iii) to perform its subcontract with the prime/higher-tier contractor resulting from a contract award under the Solicitation. Recipient shall not use, modify, reproduce, release, perform, display, or disclose Data, nor shall Recipient allow others to do so, for any other purpose. If the Data includes any computer software, Recipient shall not enhance, decompile, disassemble, or reverse engineer such computer software for any reason.

2. Recipient shall maintain all Data received under this Agreement in strict confidence and safeguard such data from any disclosure or use not otherwise permitted under this Agreement. All such Data marked with a “Special License Rights” legend consist of trade secrets and copyrighted material that is confidential and proprietary to Kongsberg Defence & Aerospace AS (“Kongsberg”) or its licensors and which has been disclosed to the U.S. Government under a Special License Agreement under DFARS 252.227-7013(b)(4) and DFARS 252.227-7014(b)(4). Recipient agrees to adopt, establish, and maintain operating procedures and physical security measures designed to protect these Data from release or disclosure to unauthorized third parties. Such operating procedures and security measures shall protect Data from improper release or disclosure using at least the same degree of care Recipient uses to protect its own proprietary information, but in no event less than reasonable care. Recipient shall not remove all or any portion of the “Special License Rights” legends, copyright notices, or any other protective markings contained on the Data nor alter such markings in any way.

3. Recipient shall disclose Data only to its employees possessing a “need to know,” and only the type and quantum of Data as is reasonably necessary to enable Recipient to accomplish the purposes for which the Data have been provided under this Agreement. Prior to disclosing any Data, however, Recipient shall ensure that each such employee to whom disclosure of any Data is intended has been informed of his or her responsibilities under the terms of this Agreement and has signed a confidentiality agreement with Recipient that, by its terms, subjects the employee to the requirements and restrictions of this Agreement pertaining to such Data.

4. In support of the uses permitted above, Recipient may disclose portions of the Data to a prospective or actual lower-tier subcontractor or supplier under the following limitations.

(a) Recipient shall release to each such prospective or actual subcontractor or supplier only the type and quantum of Data that is necessary for such prospective or actual subcontractor to propose, or perform, the solicited requirements, as determined by the scope of the prospective or actual subcontract;

(b) Prior to such Data disclosure, Recipient shall obtain from each such prospective, or actual subcontractor, or supplier, an executed Use and Non-Disclosure Agreement containing the same requirements and restrictions imposed upon Recipient by this Agreement, i.e. only modified for the names of the relevant parties;

(c) Recipient shall notify the U.S. Government Contracting Officer responsible for the administration of the prime contract, and the higher-tier contractor/subcontractor or supplier from whom Recipient obtained the Data, of the identity of each subcontractor or supplier to whom a release or disclosure of any portion of the data has been made and the specific contents of such release or disclosure; and

(d) Upon request by the U.S. Government’s Contracting Officer, Recipient shall also provide a copy of the Use and Non-Disclosure Agreement executed by such subcontractor or supplier.

5. Recipient shall destroy all Data in its possession, no later than 30 calendar days after either: i) the date that Recipient is informed by the prime/higher-tier contractor that it has not been awarded a contract under the Solicitation; ii) the date that such procurement has been canceled by the Government; or iii) if a contract has been awarded to the prime/higher-tier contractor, and consequently, a subcontract is awarded to Recipient by such prime/higher-tier contractor, the date of final acceptance by the U.S. Government of all items and services required under the Contract that require use of all or part of the Data. This date may be extended until the date that is 30 calendar days after the resolution of any dispute between Recipient, the prime/higher tier sub-contractor, and/or the U.S. Government where all or part of the Data is required to help resolve such dispute. Recipient shall certify the Data destruction, and notify the owner/licensor of such Data, Kongsberg Defence & Aerospace AS (“Kongsberg”), and the U.S. Government Contracting Officer that the Data have been destroyed.

6. Recipient shall ensure that all persons or entities to whom it has released Data under this Agreement certify destruction thereof by the date required in paragraph 5 above, and notify the owner/licensor, Kongsberg Defence & Aerospace AS (“Kongsberg”), and the U.S. Government Contracting Officer that the Data have been destroyed. The Data will be “destroyed” as meant in this Agreement when the Data, whether software or hardcopy and whether original or duplicate copies or transcriptions of it, is transformed to such extent that the Data is no longer readable, identifiable, salvaged, or reconstructable, using the world’s state of the art in data recovery.

7. Information provided to Recipient under this Agreement shall not be subject to any limitations on its use or disclosure, if Recipient can demonstrate that any one or more of the following conditions exists:

a. Recipient knew the information and held it without restriction as to further disclosure when the disclosing party disclosed the information under this Agreement.

b. Recipient developed the information independently.

c. Another source lawfully disclosed the information to Recipient and did not restrict Recipient on its further use or disclosure.

d. The information was already in the public domain when the disclosing party disclosed it to Recipient, entered into the public domain after the disclosing party disclosed it under this Agreement through no fault of the receiving party, or became generally known through no fault of Recipient.

e. The information was ascertained by proper means other than through disclosure under this Agreement.

f. The information is required to be disclosed by Recipient by a U.S. Government agency or law, so long as Recipient promptly provides Kongsberg with written notice of the required disclosure in order to allow Kongsberg or its licensor to participate in proceedings objecting to production of the information.

8. Recipient accepts the Data “as is” without any U.S. Government representation as to suitability for intended use or warranty whatsoever.

9. Nothing in this Agreement shall be interpreted or construed to prevent the Recipient from entering into any agreement directly with Kongsberg with respect to the use, modification, reproduction, release, performance, display, or disclosure of the Data. However, as this particular Data is subject to U.S. ITAR and other U.S. laws and regulations related to this solicitation, any subsequent use, modification, reproduction, release, performance, display, or disclosure thereof is restricted under U.S. laws and regulations.

10. Recipient agrees to indemnify and hold harmless the U.S. Government, its agents, and employees from every claim or liability, including attorneys fees, court costs, and expenses arising out of, or in any way related to the misuse or unauthorized modification, reproduction, release, performance, display, or disclosure of the Data by Recipient or by any person to whom the Recipient has released or disclosed the Data.

11. Recipient is executing this Agreement for the benefit of the U.S. Government and Kongsberg. Both the U.S. Government and Kongsberg are third party beneficiaries of this Agreement who, in addition to any other rights they may have, are intended to have the rights of direct action against Recipient or any other person to whom Recipient has released or disclosed the Data, to seek damages from any breach of this Agreement, or to otherwise enforce this Agreement.

12. This Agreement shall be effective for the period commencing with the Recipient’s execution of this Agreement and ending upon Recipient’s certification to the prime/higher-tier contractor and then to Kongsberg that all Data received by Recipient under this Agreement has been destroyed. Recipient’s rights to use the Data are subject to termination upon written notice from the U.S. Government or Kongsberg if Recipient materially breaches this Agreement. The confidentiality obligations imposed upon Recipient by this Agreement shall survive the expiration or termination of the Agreement.

13. Neither this Agreement, nor any interest hereunder, may be assigned by either party without the written consent of the other party.

14. If any portion of this Agreement shall be held to be, or becomes, illegal or unenforceable, the remaining portions of this Agreement shall continue to be binding and enforceable. The failure of any party herein to enforce any provision contained herein shall not be deemed a waiver of any provision contained herein.

15. This Agreement may be executed in one or more counterparts, which together constitute one and the same instrument, and may be executed by facsimile or digital signature, each of which shall be deemed original signatures.

16. Any required notices to or communications with Kongsberg shall be sent to:

Attn: Mr. Harald Sørensen; Harald.Sorensen@kongsberg.com; KONGSBERG DEFENCE & AEROSPACE A/S, KIRKEGRDSV 45, P.O. Box 1003, Kongsberg 3601, Norway.

17. Any required notices to or communications with the U.S. Government shall be sent to the US. Government Contracting Officer: Gherin Fracasso, gherin.fracasso.civ@mail.mil, U.S. Army Contracting Command, New Jersey, ATTN: ACC-NJ-SW, Bldg. 9, Mailstop: Bldg. 10B, Picatinny Arsenal, New Jersey 07806-5000.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their authorized representatives.

FOR [Recipient's Business Name]

By___________________________

Date:____________________

Authorized Representative

Representative's Typed Name_______________________

Title_____________________________________

FOR [Higher-tier offeror or contractor, as applicable]

By___________________________

Date:____________________

Authorized Representative

Representative's Typed Name_________________ and Title_______________________

FOR [U.S. Government Agency, as applicable]

By___________________________

Date:____________________ Gherin Fracasso, Contracting Officer, U.S. Army Contracting Command, New Jersey, ATTN: ACC-NJ-SW, Bldg. 9, Mailstop: Bldg. 10B, Picatinny Arsenal, NJ 07806-5000. gherin.fracasso.civ@mail.mil; 973-724-2775.